36. An act for repairing, maintaining, and improving the line of the road from Leeds to Otley in the West Riding of the County of York.

37. An act for making and maintaining a road from the road leading from Glasgow to Carntyne, called Duke Street, to the east end of Blackfriars Street or Regent Street in the said city of Glasgow.

38. An act for better maintaining the road from Gillow Hollow in the parish of Biddulph in the County of Stafford to the Congleton and Leek turnpike road at Park Lane in the township of Congleton in the County of Chester, with the road therefrom at Lick Lane in the said parish of Biddulph.

39. An act for further and more effectually repairing, amending, and maintaining certain roads in the county of Roxburgh, and other roads connected therewith, leading into the counties of Berwick, Northumberland, and Durham.

40. An act for more effectually improving the several roads from Newcastle-under-Lyme to Darlaston Bridge, Butt Lane, and Linley Lane, and through Trent Vale and Stoke-uponTrent to Shelton Wharf, all in the county of Stafford.

41. An act for maintaining, repairing, and amending turnpike roads from the town of Antrim in the county of Antrim towards Coleraine in the county of Londonderry.

42. An act for maintaining, repairing, and amending, a turnpike road from Belfast to Lisburne by Malone and by the Falls, and two turnpike roads leading from the Falls Road by Dundrod and Castlerobin respectively to Crum. lin, in the county of Antrim.

43. An act for more effectually amending the roads from Manchester in the County of Lancaster through Oldham to Austerlands in the County of York, and from Oldham to Ashton-under-Lyne, and from Oldham to Rochdale, and other roads, and for making and maintaining new lines to communicate therewith, all in the said county of Lancaster.

44. An act for making and maintaining a turnpike road from Butterhouse Green in the county of Chester to Thorneley Lane End in the county of Lancaster.

45. An act for amending two several acts, of the seventh and tenth years of his late Majesty King George the Fourth, for repairing the road from Ashborne in the county of Derby to Leek in the county of Stafford, and from Ryecroft Gate upon Rushton Common to Congleton in the county of Chester.

46. An act for repairing and maintaining the road leading from Elland Bridge in the parish of Halifax into the Dewsbury and Elland Turnpike Road near the obelisk in the parish of Dewsbury, all in the West Riding of the county of York.

47. An act to enable the managers of the Sun Life Assurance Society to appropriate any part of the profits thereof for the benefit of any persons who have already effected or may hereafter effect policies of assurance with the said society.

48. An act to continue for a limited term of years the acts relating to the police of the city of Glasgow; to vest the management of the Statute Labour Conversion Money of the said city in the board of police thereof; and for other purposes therein mentioned.

49. An act to continue for a limited term of years the police act for the barony of Gorbals in the county of Lanark, and for other purposes relating thereto.

50. An act to enlarge the powers of an act passed in the third year of the reign of his present Majesty, intituled "An act for making a railway from London to Greenwich."

51. An act for constructing a harbour, dock or docks, piers, and other works at Trinity in the parish of North Leith and county of Edinburgh.

52. An act for better supplying with water the town and borough of Swansea in the county of Glamorgan.

53. An act for making a canal from the Stourbridge navigation near Brockmoor in the parish of Kingswinford in the county of Stafford to the Oak Farm Colliery, with a branch to the Standhills, both in the said parish of Kingswinford and county of Stafford.

54. An act for making and maintaining certain resorvoirs in the several townships of Holme, Cartworth, Austonley, Upperthong, Wooldale, and Hepworth, in the several parishes of Kirkburton and Almondbury, in the West Riding of the county of York.

55. An act for better supplying with water the town of Wakefield and the neighbourhood thereof in the West Riding of the county of York.

56. An act to alter and amend an act of the last session of parliament, intituled "An act for making and maintaining a pier wharf and other works at Greenwich in the county of Kent;" and to extend the powers of the said act.

57. An act for more effectually draining of certain fen lands and low grounds in the honor manor, and parish of Wormegay in the county of Norfolk, and other lands and grounds which are now drained by means of or through a certain drain called "Polver Drain" in the said county.

58. An act for removing the markets held in the city of Worcester in the county of Worcester for the sale of cattle, horses, sheep, and pigs, and for providing another market place in lieu thereof, and for providing for the better and more effectual draining the said city.

59. An act to alter and amend an act of the

sixth year of the reign of his late Majesty, for opening certain Streets in the Burgh of Dundee, and for otherwise improving the said burgh.

60. An act for building a bridge over the river Tweed at or near to Mertoun Mill in the county of Berwick, and for making avenues and approaches thereto.

61. An act for the uniform valuation of lands and tenements in the county of Waterford in Ireland, for the purpose of levying the county rates therein.

Selections from Correspondence.-Superior Courts: Lord Chancellor.

62. An act for the recovery of small debts within the southern division of the Hundred of Roborough and within the hundred of Plympton in the county of Devon, and within the Southern division of the Hundred of East in the county of Cornwall.

[To be continued.]

SELECTIONS

FROM CORRESPONDENCE.

PRACTICE AT JUDGES' CHAMBERS.

Sir,

VINDEX.

SUPERIOR COURTS.

Lord Chancellor's Court.

LIABILITY OF TRUSTEES AND OF THEIR

ESTATE.

339

transfer of the fund for several years after the plaintiffs, who were the children of the settlor, and who must be presumed to have been cognizant of the facts, had arrived at majority. Not only Mr. Grant was dead, but his estate had been administered some years before the bill was filed; and on this ground, and also that there was no equity in pursuing his assets into the hands of his legatees, it was contended that the bill could not be supported. The Master of the Rolls, however, thought that the assets of Mr. Grant were still liable to be applied in replacing the trust fund, and he made a decree to that effect.

Mr. Barber, Mr. Koe, and Mr. Lowndes appeared for the defendants, the executors and legatees of Mr. Grant, in support of the appeal.

Mr. Wakefield and Mr. Daniel supported the decree of the Master of the Rolls, and contended that the sum must be restored, and that the suit was instituted as early as possible after the children of the settlor obtained vested rights, and were qualified to sue.

a

In consequence of the note you appended to my letter at p. 275, stating your belief that the fees received by the Judge's clerks were accounted for and paid to the Treasury, I have made enquiry on the subject, and am informed that the fees alluded to, do not form part of those paid into the treasury, but are vacation fees, and are received by the clerks for their The Lord Chancellor.-The two plaintiffs own use, and not accounted for to any one.Further, that the sums received by the vacation claimed by virtue of a settlement which gave Judge's clerks for summonses and orders life interest to their parents, with remainder alone, during the present vacation, amount to to such children as they might have. It apupwards of 1000l.; a sum I should be afraid peared that in 1811, Mr. Grant, one of the to mention, did I not conceive I had the in-trustees, had been prevailed upon to transfer the stock, which was the subject of the settleformation from good authority. ment, into the name of his co-trustee only, by whom it was sold out, and eventually lost to the cestui que trusts. The trustee who had made the transfer died about twenty years ago, and his estate was distributed among his legatees and creditors, under a decree of the Court. One of the plaintiffs was born in 1804, and the other in 1807, and consequently both were of age some years before the filing of the bill in 1833. The object of the bill was to obtain contribution from the legatees of Mr. Grant, a sum equal to that which had been lost to the plaintiffs. It was objected that assets could not be followed after presumed acquiescence in the administration, after so long a delay, and in circumstances which shewed a full knowledge of the breach of trust so long before proceedings were taken. But even after administration with the sanction of the Court, and without notice of the claims of a creditor, assets might be followed. It was the settled principle of the Court that a legatee took his legacy subject to all claims that could be made on the fund out of which it was payable; so much so indeed that it was the practice formerly to require security from legatees against such claims; and though that was now discontinued, the liability to refund still remained. There was another point which was argued, namely, whether it would be proper to inquire as to the plaintiffs' knowledge of the breach of trust when it was committed: but at that period, in 1811, one of the plaintiffs was only seven years old, and the other four, and though the bill was not filed until 1833, some years after the youngest came of age, still the delay was not a sufficient reason for refusing the relief prayed for. The judgment

One of two trustees transferred the trust fund to the other, by whose default it was lost to the cestui que trust in remainder Held, that the estate of the solvent trustee, after his death, and after it was distributed among his legatees, was liable to supply the deficiency of the trust fund.

This was an appeal from a decree of the Master of the Rolls. The bill was filed in 1833, for the purpose of recovering from the estate of Mr. Grant, then deceased, a sum of 1,0007., of which he had formerly been trustee with another person, also deceased, and which, on the request of the parties beneficially entitled in possession, had been transferred by Mr. Grant to his co-trustee, and subsequently lost. It appeared, that in 1807, the father of the plaintiffs made a voluntary settlement to the use of himself and wife for life, and of the survivor of them, and after the decease of the survivor, to such of their children as should outlive them, and to their issue. In 1811, at the request of the settlor and his wife, Mr. Grant transferred the trust fund to his cotrustee, by whom it was converted to his own

use.

No steps were taken to procure a re

340

Superior Courts: Lord Chancellor.

of the Master of the Rolls was right, and therefore the appeal must be dismissed, with costs. March v. Russell and others, Sittings in Lincoln's Inn, July 20, and August 3, 1837.

CONSTRUCTION OF CONTRACT.

Circumstances in which it was held that a contract for the occupation of land, not amounting to a lease, was still a valid agreement, operating as a licence to keep possession of the land.

SPECIFIC PERFORMANCE.

Circumstances in which the Court felt justi fied, without evidence of the nature of the contract, to order an account of profits equivalent to a specific performance.

This was a bill for an account of the profits of certain contracts entered into with the Barrack Department for the execution of works at Dover, lythe, and other places, in the years 1804, 5, 6, and 7. The sums received by Baldock, the original defendant in the suit,

for the contracts amounted to near 97,000%. Of the works for which this sum was received it was charged in the bill, that Moss, the original plaintiff, had the entire superiutendence, and that he actually executed one fourth. Moss and Baldock are both dead, and the ex

of the other to exhibit the contract between Moss and Baldock, by which it is alleged in the bill that Moss was to have one fourth of the profit on the Dover works, contract price for all the others, a general per-centage for his trouble, and interest on the money received from the barrack department by Baldock, part of which was admitted to belong to Moss, but which was not paid over to Moss till some years afterwards."

This was an appeal from a decree of the Master of the Rolls. The bill was filed for specific performance of an agreement, alleged by the plaintiff to have been entered into with the defendants, and it stated among other things, that in the year 1833, and long pre-ecutors of the former are suing the executors viously, Mr. Nelson had been tenant to Mr. Bridges, of a piece of land near Bradford in Yorkshire, which he used as a stone quarry, desiring to enlarge the area of ground so employed. Mr. Nelson contracted in Feb. 1833, for 1200 additional square yards, and immediately afterwards began to work, and to extend the posts and rails by which his former plot of ground had been meted out. The defendant by his answer denied any licence to extend the quarry, and the question between the parties Mr. Wakefield, Mr. Richards, and Mr. J. was, whether he had granted such licence. Bacon, for the plaintiffs, argued that the terms Lord Langdale on the hearing of the cause of the contract were sufficiently established by was of opinion that the evidence produced by the answer of the defendants, and that a referthe plaintiff, amounted to proof of an agree-ence ought to be ordered to the Master to ment, and decreed performance accordingly, and also ordered an injunction to restrain an ejectment brought by the defendant to recover possession of the land.

take an account and ascertain the balance due to the representatives of Moss, which they contended was many thousand pounds.

Mr. Jacob and Mr. Turner, on the otherside, Sir C. Wetherell, Mr. Skirrow, and Mr. denied that there was any contract, and conL. Wigram, were heard in support of the ap-tended that Moss was merely to charge tradespeal from that decree.

Sir William Horne and Mr. Elmsley, contra. The Lord Chancellor.-The plaintiff in this case was tenant to Mr. Bridges, of a piece of land which he used as a stone quarry, and being desirous of extending the area, he entered into an agreement, as the bill alleged, for an additional quantity of land. Mr. Bridges denied having made any agreement for a further demise, and asserted that he had only granted a licence to dig stone, which was revokable at any time, and which he did revoke, and took proceedings at law to recover possession of the additional 1200 yards. The whole question depended upon the balance of testimony as to the contract said to have been made. His Lordship was of opinion that the evidence proved a licence, though not a lease; but many and most mines were worked upon similar terms. The issue being whether the landlord had assented to the setting out of the additional 1200 square yards, for the use of the plaintiff, he thought this was proved, and therefore, as the order of the Master of the Rolls directing a specific performance of the contract, was substantially correct, he ordered the appeal to be dismissed with costs.

Nelson v. Bridges.-Sittings at Lincoln's Inn, July 21 and 29, 1837.

man's prices for materials and labour. That charge he had made, the sum had been paid, and, according to the account sent in, there was nothing now due.

The Lord Chancellor.-In this case a bill was filed for the equitable performance of an agreement, alleged to have been entered into between Moss and Baldock, for the division of the profits of a contract that Baldock held from the barrack department, to execute some expensive works at Dover and Hythe. Moss and Baldock are both dead, and the suit has been carried on by the executors,-those of Moss alleging that he was to have contract price for the work done, and the executors of Baldock denying that, but admitting such tradesman's prices as wou d afford him reasonable compensation for his trouble. The evidence in the cause afforded very little to guide the judgment of the Court on the nature of the contract or understanding between the parties; but there was enough admitted in the answer of the defendants to satisfy him that Moss was to have an adequate remuneration. A reference must therefore be ordered to the Master, to take an account, on the footing of the only account existing in the handwriting of Moss, which account carried up the transaction between the parties to a certain period.

Superior Courts: King's Bench Pracice Court.

If that account was followed up, his lordship had no doubt it would ultimately give Moss all that it was intended he should have at the time the agreement was entered into.

Moss v. Baldock.-Sittings at Lincoln's Inn, after Trinity Term, 1837.

342

law was.

p.

Superior Courts: King's Bench Practice Court.

came into force, and that case could not be | In the ordinary sense of the word, there was no considered as an authority to shew that the act doubt it had long since become obsolete; alof William had ever been carried into opera- though found in a stamp act, the penal part of it tion since the passing of the 12 G. 1. The appeared to have been introduced to aid plainusage must be taken as evidence of what the tiffs in enforcing the appearance of defendants, Mr. Tidd evidently thought the old rather than to protect the revenue. law was repealed by 12 Geo. 1, c. 29, for in peared to have been acted upon up to the time It ap240 of his practice, note c, he said "This when 12 Geo. 1, c. 29, came into operation, is the same time as the defendant was allowed but from that time there was nothing to shew to file common bail on an arrest before statute that recourse had been had to it, the provisions 12 Geo. 1, c. 29, and if he did not file it within | of that act apparently being taken as substithat time, he was liable to a penalty of 5., to tuted for those of the former one; and if the be paid to the plaintiff. Stat. 9 & 10 W. 3, c. 25, s. 35." Thus speaking throughout in the formity of Process Act were considered, it new powers given to plaintiffs under the Unipast tense. The subsequent stamp acts, be certainly would appear unnecessary to maintain sides, although they re-enacted and increased in existence the provisions of the old enact the amount of the stamp on common bail, said ment. No statute had been mentioned in the nothing about the penalty. It must be pre- argument, by which there was a positive resumed that the legislature intended to super-peal of the act of W. 3; but it was contended, sede the old mode of compelling an appearance by enabling the plaintiff to enter one himself. The provisions of the Uniformity of Process Act, besides, were inconsistent with the statute of William. Section 1 & 2 gave a new species of serviceable process, and directed that a new form of appearance should be adopted; but nothing was said about common appearance or common bail. The entry of an appearance now for the defendant, was under the provisions of that act. No words, it was true, were introduced expressly abolishing the former practice, but the provisions of the new statute must override those of the old one. It had been held that the 2 & 3 W. 4, c. 39, s. 11, abolished imparlances, and so in the present case the old practice must be considered to be abolished by implication. The 5 Geo. 4, c. 41, must also be taken to have repealed it, for in the third schedule attached to the statute, the stamp of 2s. 6d. on 66 an appearance filed or entered in any action at law, wherein no bail should be filed or put in," was repealed.

Tyndale, in support of the rule, submitted that none of the authorities or statutes cited were inconsistent with the 9 & 10 W. 3. The case of Sharpe v. Warren, 6 Price 131, was analagous; in the marginal note, the following passage occurred, "An act of parliament giving a summary remedy to persons against defaulters, though in terms apparently prescribing such remedy is cumulative, and does not take away the previous right to sue by action at law." The 13 G. 1 only gave the plaintiff the additional advantage of entering at his option an appearance for the defendant, but did not in any way interfere with his right to enforce an appearance by the defendant through the medium of the penalty. The Uniformity of Process Act, it must be admitted, had introduced a new form of serviceable process, as well as an appearance, but the 9 & 10 W. 3, were equally applicable to an appearance under the new act. If two statutes, therefore, could subsist together, one could not be taken to repeal the other.

Cur. adv. vult. Coleridge, J. gave judgment.—The simple question raised on the argument was, whether the clause of the statute was repealed or not?

that it was put out of operation impliedly by the 12 Geo. 1, c. 29, and the 2 W. 4, c. 39. This mode of reasoning did not quite satisfy the mind of the Court; the penal clause of the old act might well stand with the provisions of the new statute, and when that was the case, it was contrary to the rules of legal construction to hold that a statute by implication worked the repeal of a former one. however, might be discharged on The present rule, ground. The penalty attached upon the nea safer glect to enter an appearance within a certain time after the return day of the process; the appearance so to be entered was to be written on stamped vellum, parchment or paper; and so long as the same or any additional duty remained imposed on common appearances, it might be contended, that there was matter on which the clause would operate. By the repeal of stamp duties on legal proceedings by 5 G. 4, c. 41, it was impossible for the defendant to comply in terms with this enactment, of a penal statute, to insist on a compliance and the plaintiff had no right in enforcement with it. So for want of a subject-matter to act upon, the clause must be considered to be repealed, and the rule must be discharged, and with costs; the application being merely an experimental one to revive the operation of a statute which was always somewhat severe, and was now quite unnecessary for the advancement of justice.

Rule discharged with costs.-Thomas v. Nokes, T. T. 1837. K. B. P. C.

SERVICE IN EJECTMENT.

In ejectment, where the tenants lock themselves in the premises and refuse to open the doors, placing copies of the declaration under the doors, and giving an explanation aloud outside, will be deemed sufficient service for the granting of a rule nisi for judgment against the casual ejector.

Kelly moved for judgment against the casual ejector. The affidavit of service of process stated that the deponent had been unable to serve two of the defendants, who had locked themselves up on the premises, and had re